Jonny Savier Vasquez - Rodriguez v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J ONNY SAVIER VASQUEZ -
RODRIGUEZ ,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 19-71445
Agency No.
A098-489-762
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 10, 2020
San Francisco, California
Filed August 5, 2021
Before: Eric D. Miller and Danielle J. Forrest,* Circuit
Judges, and Douglas L. Rayes,** District Judge.
Opinion by Judge Miller
* Formerly known as Danielle J. Hunsaker.
** The Honorable Douglas L. Rayes, United States District Judge for
the District of Arizona, sitting by designation.

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SUMMARY***
Immigration
Granting Jonny Vasquez-Rodriguez’s petition for review
of the denial of withholding of removal and protection under
the Convention Against Torture, the panel remanded for the
Board of Immigration Appeals to consider in the first
instance Vasquez-Rodriguez’s social group claim based on
his perceived gang membership, and to reconsider Vasquez-
Rodriguez’s CAT claim.
First, the panel upheld the agency’s determination that
Vasquez-Rodriguez did not establish eligibility for
withholding of removal on account of his political opinion.
Turning to Vasquez-Rodriguez’s social group claim
based on individuals erroneously perceived to be gang
members, the panel first addressed the exhaustion
requirement of 8 U.S.C. § 1252(d)(1), and concluded that it
contains an exception for cases in which exhaustion would
be futile. The panel explained that this circuit has
recognized a futility exception to the exhaustion
requirement, and has held that where the agency’s position
on the question at issue appears already set, and it is very
likely what the result of recourse to administrative remedies
would be, such recourse would be futile and is not required.
The panel held that the futility exception was satisfied
here. The panel explained that in Matter of E-A-G-,
*** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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24 I. & N. Dec. 591 (B.I.A. 2008), the Board adopted a legal
rule categorically barring people erroneously perceived to be
gang members from recognition as a particular social group.
Although the Board later emphasized in Matter of
M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014), that its
decision in Matter of E-A-G- should not be read as a blanket
rejection of all factual scenarios involving gangs, it
nonetheless upheld Matter of E-A-G-’s conclusion that, as a
matter of law, perceived membership in a criminal gang
cannot constitute a particular social group. Thus, the panel
concluded that the Board would have been required to reject
Vasquez-Rodriguez’s claim. The panel observed that
Vasquez-Rodriguez could have relied on out of circuit
precedent to urge the Board to depart from Matter of E-A-G-.
However, because this circuit had not previously considered
the issue, and with rare exceptions, the Board follows the law
of the circuit in which an individual case arises, the panel
concluded that Vasquez-Rodriguez could not have made a
meritorious argument that Matter of E-A-G- no longer
constituted binding law under this circuit’s precedent. Thus,
the panel held that exhaustion was not required.
Addressing the merits of Vasquez-Rodriguez’s social
group claim, the panel concluded that the approach set forth
in Matter of E-A-G- is inconsistent with the requisite fact-
based analysis required for proposed particular social
groups. The panel explained that in Matter of E-A-G-, the
Board relied on Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.
2007), in which this court held that actual members of a gang
could not constitute a particular social group. In Arteaga,
this court reasoned that it was impossible to believe that
Congress intended to offer refugee protection to violent
street gangs who assault people, traffic in drugs, and commit
theft, and that it would pervert the manifest humanitarian
purpose of the statute to create a sanctuary for universal

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outlaws. The panel observed that those considerations do
not apply to persons who are not members of a gang and
instead are incorrectly perceived to be gang members.
Moreover, the panel explained that the Board may not reject
a group solely because it had previously found a similar
group in a different society to lack social distinction or
particularity. The panel wrote that it was not suggesting that
the proposed group would necessarily qualify. Rather,
because the Board had not yet had an opportunity to decide
the issue, the panel remanded for the Board to decide the
issue in the first instance.
Finally, the panel held that substantial evidence did not
support the Board’s denial of CAT protection. The panel
explained that the Board’s reliance on Vasquez-Rodriguez’s
uncle’s continuing safety in El Salvador was unreasonable
when Vasquez-Rodriguez’s fear of persecution was based on
his own perceived gang membership—not his uncle’s. The
panel also explained that the immigration judge identified no
evidence suggesting that Vasquez-Rodriguez could safely
relocate to another part of the country, and that the relocation
finding was impossible to reconcile with Vasquez-
Rodriguez’s testimony, which the Board assumed to be
credible. The panel therefore remanded for further
consideration of Vasquez-Rodriguez’s CAT claim.
COUNSEL
Nienke Schouten (argued), Law Office of Nienke Schouten,
Pinole, California, for Petitioner.
Nehal Kamani (argued), Attorney; Holly M. Smith, Senior
Litigation Counsel; Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.

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OPINION
MILLER, Circuit Judge:
Jonny Vasquez-Rodriguez has repeatedly left El
Salvador, illegally entered the United States, and been
removed to El Salvador. Having once again entered the
United States, he applied for withholding of removal and
protection under the Convention Against Torture. The
immigration judge denied relief, and the Board of
Immigration Appeals dismissed his appeal. The agency did
not consider whether Vasquez-Rodriguez was eligible for
withholding of removal on account of his membership in the
particular social group of people erroneously believed to be
gang members. Although Vasquez-Rodriguez did not
present that claim to the agency, we conclude that we may
consider it now because presenting it to the agency would
have been futile. We also conclude that the agency failed to
consider certain evidence in the record showing that it is
more likely than not that Vasquez-Rodriguez would be
tortured if removed to El Salvador. We therefore grant the
petition for review and remand.
I
Vasquez-Rodriguez was born in El Salvador and resided
there until 2004, when he unlawfully entered the United
States with his mother and siblings. In 2008, he was removed
to El Salvador. The next year, he returned to the United
States and was again removed.
According to Vasquez-Rodriguez, he lived with his
uncle in San Vicente, El Salvador, where the local police
harassed and beat him because he has several tattoos and the
officers mistakenly believed him to be a gang member.
Then, his uncle ran for mayor, and Vasquez-Rodriguez

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volunteered with the campaign. Vasquez-Rodriguez says
that the incumbent mayor, and a handful of officers who
were loyal to her, retaliated against him. They targeted him,
rather than his uncle, because his uncle was well liked within
the community. They beat Vasquez-Rodriguez and falsely
accused him of marijuana possession, an offense to which he
pleaded guilty so he could get out of jail. But officers
continued to target him for harassment and violence.
Eventually, he reported the officers to the police department
and, when the department refused to help, to a human-rights
organization. But the attacks continued, so he fled yet again
to the United States.
In 2013, Vasquez-Rodriguez was removed to El
Salvador a third time. He claims that the police detained him
at the airport because, by leaving the country, he had violated
the conditions of his release from jail on the marijuana
conviction. He says that he was then turned over to San
Vicente officers, only to be beaten and jailed once again. At
one point, one of the officers raped him. He eventually went
into hiding in the mountains, where he lived for almost a year
before escaping to the United States.
In 2018, Vasquez-Rodriguez pleaded guilty to
misdemeanor domestic battery in California state court, and
his earlier removal order was reinstated under 8 U.S.C.
§ 1231(a)(5). Vasquez-Rodriguez expressed a fear of
persecution in El Salvador on the basis of his political
opinion, and an asylum officer referred him for withholding-
only proceedings after determining that he was not eligible
for asylum. Vasquez-Rodriguez filed applications for
withholding of removal and for relief under the Convention
Against Torture (CAT).
The immigration judge found Vasquez-Rodriguez not
credible and denied both applications. The immigration

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judge also found that, even assuming his credibility,
Vasquez-Rodriguez was not eligible for withholding of
removal because he did not show that he had been persecuted
or establish a well-founded fear of future persecution on
account of any statutorily protected ground. And the
immigration judge found that Vasquez-Rodriguez was
ineligible for CAT relief because he could safely relocate to
another part of El Salvador.
The Board assumed that Vasquez-Rodriguez was
credible but affirmed the immigration judge’s other findings
and dismissed Vasquez-Rodriguez’s appeal.
II
The Attorney General must withhold removal of an alien
to a country if “the alien’s life or freedom would be
threatened in that country because of the alien’s . . .
membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). Vasquez-Rodriguez
argues that he is entitled to withholding of removal because
he faces persecution on account of his political opinion and
on account of his membership in the particular social group
of people erroneously believed to be members of gangs. We
begin by considering the political-opinion claim.
To qualify for withholding of removal, an applicant must
show that “it is more likely than not that” he would be
persecuted because of a protected ground. INS v. Stevic,
467 U.S. 407, 424 (1984). The applicant need not
demonstrate that the protected ground is a central reason for
his persecution; it is enough for it to be “a reason.” Barajas-
Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (quoting
8 U.S.C. § 1231(b)(3)(C)). Here, the Board determined that
Vasquez-Rodriguez “was targeted by the police because he
was a suspected gang member, not because of his political

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(or imputed political) opinion.” Because “[a] persecutor’s
actual motive is a matter of fact,” we review that finding for
substantial evidence. Matter of N-M-, 25 I. & N. Dec. 526,
532 (B.I.A. 2011); see also Regalado-Escobar v. Holder,
717 F.3d 724, 726–27 (9th Cir. 2013). We conclude that
substantial evidence supports the Board’s determination.
In his declaration, Vasquez-Rodriguez stated that the
officers initially targeted him because he had his own credit
card, because “they didn’t like the way [he] answered . . .
their questions,” and because he had tattoos. That statement
is consistent with his other documentary submissions,
including his aunt’s statement that Vasquez-Rodriguez was
accused “of being a member of a gang because of his
tattoos.” It is also consistent with his earlier statements. For
example, when Vasquez-Rodriguez reported the abusive
officers to a human-rights organization, he did not mention
his uncle’s campaign, the mayor, or any other political
motivation for the officers’ attacks. Instead, he reported that
the police “ask[ed] him about his belonging to gangs” and
“express[ed] that he has tattoos.”
In challenging the agency’s finding, Vasquez-Rodriguez
relies on his own testimony and his family members’ letters
of support stating that the mayor targeted him at least in part
because of his involvement in his uncle’s political campaign.
But Vasquez-Rodriguez’s testimony casts doubt on whether
the mayor’s actions were motivated by politics rather than
by her suspicion that he was a gang member “because [he]
ha[s] tattoos,” by his involvement in criminal activity, or
perhaps by her belief that he “was disrespecting her.” Thus,
although the Board assumed Vasquez-Rodriguez to be
credible, his ambiguous testimony does not compel the
conclusion that his political opinion was a reason for his
persecution. See Garland v. Ming Dai, 141 S. Ct. 1669, 1680

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(2021) (“[E]ven if the [Board] treats an alien’s evidence as
credible, the agency need not find his evidence persuasive or
sufficient to meet the burden of proof.”); Singh v. Holder,
753 F.3d 826, 836 (9th Cir. 2014). Because the record does
not compel a conclusion contrary to that reached by the
agency, we uphold the agency’s determination that Vasquez-
Rodriguez did not establish eligibility for withholding of
removal on this ground. See 8 U.S.C. § 1252(b)(4)(B); Ming
Dai, 141 S. Ct. at 1678.
III
Vasquez-Rodriguez also argues that he is eligible for
withholding of removal because he faces persecution on
account of his membership in the particular social group of
persons erroneously believed to be gang members. He
admits that he did not exhaust that claim by presenting it to
the agency, but he maintains that we may consider it now
because raising it before the agency would have been futile.
We conclude that the exhaustion requirement contains an
exception for cases in which exhaustion would be futile, that
the futility exception is satisfied here, and that the agency’s
treatment of claims of persecution based on imputed gang
membership is legally flawed.
A
We begin by examining the exhaustion requirement and
its futility exception. Congress has authorized us to review
“a final order of removal only if . . . the alien has exhausted
all administrative remedies available to the alien as of right.”
8 U.S.C. § 1252(d)(1). On its face, that provision appears to
require only that the alien exhaust available remedies—that
is, procedures for challenging an adverse decision.
Nevertheless, we have held that the statute also requires
issue exhaustion, or, in other words, that it permits us to

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consider only those issues that the petitioner properly raised
before the agency. Juarez Alvarado v. Holder, 759 F.3d
1121, 1127 n.5 (9th Cir. 2014); accord Barron v. Ashcroft,
358 F.3d 674, 677–78 (9th Cir. 2004); see Sims v. Apfel,
530 U.S. 103, 106–07 (2000) (distinguishing between
exhaustion of remedies and issue exhaustion). On this point,
our interpretation of section 1252(d)(1) is consistent with
that of the other courts of appeals. See Perez Batres v. Lynch,
796 F.3d 157, 159–60 (1st Cir. 2015); Lin Zhong v. United
States Dep’t of Just., 480 F.3d 104, 122 (2d Cir. 2007); Bin
Lin v. Attorney Gen., 543 F.3d 114, 119–20 (3d Cir. 2008);
Cabrera v. Barr, 930 F.3d 627, 631 (4th Cir. 2019); Vazquez
v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018); Ramani v.
Ashcroft, 378 F.3d 554, 558–60 (6th Cir. 2004); Zeqiri v.
Mukasey, 529 F.3d 364, 369–70 (7th Cir. 2008); Etchu-
Njang v. Gonzales, 403 F.3d 577, 582–84 (8th Cir. 2005);
Robles-Garcia v. Barr, 944 F.3d 1280, 1283 (10th Cir.
2019); Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003).
But we have gone beyond simply holding that section
1252(d)(1) mandates issue exhaustion; we have “held that
issue exhaustion is a jurisdictional requirement.” Juarez
Alvarado, 759 F.3d at 1127 n.5. Thus, as we have construed
the statute, it “bars us, for lack of subject-matter jurisdiction,
from reaching the merits of a legal claim not presented in
administrative proceedings below.” Barron, 358 F.3d at 678.
That interpretation is well established in circuit law. See,
e.g., Honcharov v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir.
2019) (per curiam); Juarez Alvarado, 759 F.3d at 1127; Sola
v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam).
And several other courts of appeals agree. See Sousa v. INS,
226 F.3d 28, 31–32 (1st Cir. 2000); Bin Lin, 543 F.3d at 120;
Cabrera, 930 F.3d at 631; Ramani, 378 F.3d at 560; Etchu-
Njang, 403 F.3d at 583; Robles-Garcia, 944 F.3d at 1283–
84; Sundar, 328 F.3d at 1323.

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VASQUEZ -R ODRIGUEZ V . GARLAND 11
We note, however, that in recent years, the Supreme
Court has cautioned against “profligate use” of the word
“jurisdiction.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S.
145, 153 (2013); see Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 90 (1998) (“Jurisdiction . . . is a word of many,
too many, meanings.” (quoting United States v. Vanness,
85 F.3d 661, 663 n.2 (D.C. Cir. 1996))). Under the Court’s
modern approach, “the word ‘jurisdictional’ is generally
reserved for prescriptions delineating the classes of cases a
court may entertain (subject-matter jurisdiction) and the
persons over whom the court may exercise adjudicatory
authority (personal jurisdiction).” Fort Bend County v.
Davis, 139 S. Ct. 1843, 1848 (2019). The Court has
explained that when a statute “clearly states that a threshold
limitation on a statute’s scope shall count as jurisdictional,”
then it should be treated as such. Arbaugh v. Y & H Corp.,
546 U.S. 500, 515 (2006). On the other hand, “when
Congress does not rank a statutory limitation . . . as
jurisdictional, courts should treat the restriction as
nonjurisdictional in character.” Id. at 516; accord Gonzalez
v. Thaler, 565 U.S. 134, 141–42 (2012).
Because section 1252(d)(1) does not use jurisdictional
terms or otherwise describe the class of cases that courts
have authority to adjudicate, some courts of appeals have
held that its issue-exhaustion requirement, although
mandatory, is not jurisdictional. See, e.g., Lin Zhong,
480 F.3d at 118–22, 125 n.25; Korsunskiy v. Gonzales,
461 F.3d 847, 849 (7th Cir. 2006). And some courts of
appeals, although adhering to circuit precedent treating issue
exhaustion as jurisdictional, have expressed doubts about
that position. See, e.g., Sousa, 226 F.3d at 31–32; Bin Lin,
543 F.3d at 120 n.6; Robles-Garcia, 944 F.3d at 1283–84.

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We join those courts in expressing our doubts, but as we
have already explained, the precedent of this circuit is clear:
Issue exhaustion is a jurisdictional requirement. No
intervening decision of the Supreme Court is “clearly
irreconcilable” with that precedent, so it binds us here.
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en
banc).
We have discussed the jurisdictional nature of the issue-
exhaustion requirement at some length because it is
important for understanding the availability of a futility
exception. Futility is a traditional exception to judicially
created exhaustion requirements because “[i]t makes little
sense to require litigants to present claims to adjudicators
who are powerless to grant the relief requested.” Carr v.
Saul, 141 S. Ct. 1352, 1361 (2021). But if an exhaustion
requirement is jurisdictional, it should not allow non-
statutory exceptions. By definition, a jurisdictional
requirement limits the authority that Congress has granted to
a court, which means that a court “has no authority to create
equitable exceptions to jurisdictional requirements.” Bowles
v. Russell, 551 U.S. 205, 214 (2007); see Robles-Garcia,
944 F.3d at 1284.
Indeed, even if issue exhaustion under section
1252(d)(1) were not considered a jurisdictional requirement,
it is still mandated by the statute, and “mandatory exhaustion
statutes . . . establish mandatory exhaustion regimes,
foreclosing judicial discretion.” Ross v. Blake, 136 S. Ct.
1850, 1857 (2016); accord United States v. Palomar-
Santiago, 141 S. Ct. 1615, 1621 (2021); Booth v. Churner,
532 U.S. 731, 741 n.6 (2001). As we have observed in a
different context, “where a statute specifically requires
exhaustion, it . . . ‘may not be dispensed with merely by a
judicial conclusion of futility.’” Saulsbury Orchards &

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Almond Processing, Inc. v. Yeutter, 917 F.2d 1190, 1196
(9th Cir. 1990) (quoting Weinberger v. Salfi, 422 U.S. 749,
766 (1975)).
Despite the mandatory nature of the exhaustion
requirement in section 1252(d)(1), many circuits have
permitted some sort of futility exception. See, e.g., Sousa,
226 F.3d at 32; Valenzuela Grullon v. Mukasey, 509 F.3d
107, 112–13 (2d Cir. 2007); Calla Mejia v. Sessions,
866 F.3d 573, 582 (4th Cir. 2017); Goonsuwan v. Ashcroft,
252 F.3d 383, 389 (5th Cir. 2001); Iddir v. INS, 301 F.3d
492, 498–99 (7th Cir. 2002). But see Bah v. Mukasey,
521 F.3d 857, 859 (8th Cir. 2008). We are among those
circuits. See Sun v. Ashcroft, 370 F.3d 932, 942–43 (9th Cir.
2004).
In Sun, we held that aliens need not exhaust in cases
“where resort to the agency would be futile.” 370 F.3d at 943
(quoting El Rescate Legal Servs., Inc. v. Executive Off. for
Immigr. Rev., 959 F.2d 742, 747 (9th Cir. 1991)); accord
Szonyi v. Barr, 942 F.3d 874, 891 (9th Cir. 2019); Juarez
Alvarado, 759 F.3d at 1128. We reasoned that by
“requir[ing] the exhaustion only of remedies ‘available . . .
as of right,’” Congress had excluded from the exhaustion
requirement those remedies that were not available as of
right. Sun, 370 F.3d at 941–42 (quoting 8 U.S.C.
§ 1252(d)(1)) (emphasis and omission in original). We
concluded that “[t]o qualify as a remedy ‘available to the
alien as of right’ under § 1252(d)(1), a remedy must enable
the agency to give unencumbered consideration to whether
relief should be granted.” Id. at 942. We therefore held that
“where the agency’s position on the question at issue appears
already set, and it is very likely what the result of recourse
to administrative remedies would be, such recourse would
be futile and is not required.” Id. at 943 (quoting El Rescate

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Legal Servs., 959 F.2d at 747). Sun’s holding governs our
resolution of this case.
B
We now consider whether Vasquez-Rodriguez has
adequately demonstrated futility in this case. The general
administrative-law rule is that “[f]ailure to pursue
administrative remedies will be excused for futility only
upon a showing that an adverse decision was a certainty”—
or, in other words, that seeking relief from the agency would
have been truly futile, not merely unlikely to succeed.
National Sci. & Tech. Network, Inc. v. FCC, 397 F.3d 1013,
1014 (D.C. Cir. 2005) (emphasis added). In the immigration
context, those principles would mean that an alien’s claim of
futility would fail if “he cannot demonstrate that the [Board]
was unable to provide the relief that he sought.” Valenzuela
Grullon, 509 F.3d at 113. Thus, as the Second Circuit has
articulated the test, “the likelihood of adherence to
precedent” by the agency is not enough; only “the factual
impossibility of relief” is. Id.; accord Sousa, 226 F.3d at 32;
Goonsuwan, 252 F.3d at 389; cf. United States v. L.A. Tucker
Truck Lines, Inc., 344 U.S. 33, 36–37 (1952).
But we have interpreted the standard more generously.
We will excuse a failure to exhaust if “it is very likely what
[the Board’s] result would have been.” Sun, 370 F.3d at 943
(quoting SAIF Corp./Or. Ship v. Johnson, 908 F.2d 1434,
1441 (9th Cir. 1990)). Thus, “[w]here the agency’s position
‘appears already set’ and recourse to administrative
remedies is ‘very likely’ futile, exhaustion is not required.”
Szonyi, 942 F.3d at 891 (quoting El Rescate Legal Servs.,
959 F.2d at 747).
In this case, the agency could not have given
“unencumbered consideration” to Vasquez-Rodriguez’s

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argument that he is eligible for withholding of removal
because he fears persecution on account of his imputed gang
membership. Sun, 370 F.3d at 942. The agency’s rejection
of that argument “appear[ed] already set,” and the resulting
denial of relief was therefore “very likely.” Id. at 943
(quoting El Rescate Legal Servs., 959 F.2d at 747).
In Matter of E-A-G-, 24 I. & N. Dec. 591 (B.I.A. 2008),
the Board rejected a nearly identical proposed social group:
“young persons who are perceived to be affiliated with
gangs.” Id. at 595–96. The Board relied on Arteaga v.
Mukasey, 511 F.3d 940 (9th Cir. 2007), in which we held
that actual members of a gang could not constitute a
particular social group. Id. at 945–46. In the Board’s view,
“[t]reating affiliation with a criminal organization as being
protected membership in a social group is inconsistent with
the principles underlying the bars to asylum and withholding
of removal based on criminal behavior.” Matter of E-A-G-,
24 I. & N. Dec. at 596. The Board reasoned that “because we
agree that membership in a criminal gang cannot constitute
a particular social group, the respondent cannot establish
particular social group status based on the incorrect
perception by others that he is such a gang member.” Id. The
Board did not address any society-specific evidence relevant
to whether the proposed group was distinct within the
society in question. Instead, it adopted a legal rule
categorically barring people erroneously perceived to be
gang members from recognition as a particular social group.
See id. Although the Board later emphasized that its decision
in Matter of E-A-G- “should not be read as a blanket
rejection of all factual scenarios involving gangs,” Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 251 (B.I.A. 2014), it
nonetheless upheld Matter of E-A-G-’s conclusion that, as a
matter of law, “perceived membership[] in a criminal gang
cannot constitute a particular social group,” id. at 249 n.16.

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That conclusion would have required the Board to reject
Vasquez-Rodriguez’s claim. To be sure, the Board does not
follow an absolute rule of stare decisis, and therefore
Vasquez-Rodriguez could have urged the Board to depart
from Matter of E-A-G-. See In re E-L-H-, 23 I. & N. Dec.
814, 823 (B.I.A. 2005) (en banc) (explaining that “published
Board decisions remain binding” until they are “modified by
the Board”); see also 8 C.F.R. § 1003.1(g)(1). In support of
his argument, he could have cited cases from other circuits
criticizing the Board’s analysis in Matter of E-A-G-. See,
e.g., Benitez Ramos v. Holder, 589 F.3d 426, 429–30 (7th
Cir. 2009); Beltran Escamilla v. Holder, 459 F. App’x 776,
786 (10th Cir. 2012). But this circuit has not previously
considered the issue, and “[w]ith rare exceptions, the
[Board] follows the law of the circuit in which an individual
case arises.” Jama v. ICE, 543 U.S. 335, 350 n.10 (2005).
Vasquez-Rodriguez could not have made a meritorious
argument that Matter of E-A-G- no longer constitutes
binding law under this circuit’s precedent. See Juarez
Alvarado, 759 F.3d at 1129. And while he might have urged
the Board to reconsider its position, the existence of Board
precedent on the issue is sufficient to show that the agency’s
position was “already set,” and therefore, under our
interpretation of section 1252(d)(1), he was not required to
exhaust the issue. See Sun, 370 F.3d at 943; Szonyi, 942 F.3d
at 891.
C
Turning at last to the merits of Vasquez-Rodriguez’s
claim, we consider whether persons erroneously believed to
be gang members constitute a particular social group. The
Board has previously interpreted the phrase “particular
social group” to refer to a group that is “(1) composed of
members who share a common immutable characteristic,

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(2) defined with particularity, and (3) socially distinct within
the society in question.” Matter of M-E-V-G-, 26 I. & N.
Dec. at 237. We have upheld that interpretation as a
reasonable reading of the statute. Garay Reyes v. Lynch,
842 F.3d 1125, 1136–37 (9th Cir. 2016). Under the Board’s
test, determining whether a proposed social group is
cognizable necessarily involves “case-by-case
determination[s] as to whether the group is recognized by the
particular society in question.” Pirir-Boc v. Holder, 750 F.3d
1077, 1084 (9th Cir. 2014).
We conclude that the approach set forth in Matter of
E-A-G- is inconsistent with the requisite fact-based analysis
of proposed particular social groups. As we have already
explained, the Board in E-A-G- relied on our decision in
Arteaga, in which we held that actual members of a gang
could not constitute a particular social group. In Arteaga, we
reasoned that it was impossible to believe “that Congress, in
offering refugee protection for individuals facing potential
persecution through social group status, intended to include
violent street gangs who assault people and who traffic in
drugs and commit theft,” and that treating them as such
“would be to pervert the manifest humanitarian purpose of
the statute in question and to create a sanctuary for universal
outlaws.” 511 F.3d at 945–46. Those considerations do not
apply to persons who are not members of a gang but who are
incorrectly perceived to be gang members. We have held that
the Board “may not reject a group solely because it had
previously found a similar group in a different society to lack
social distinction or particularity.” Pirir-Boc, 750 F.3d
at 1084; see also Villegas Sanchez v. Garland, 990 F.3d
1173, 1181 (9th Cir. 2021) (“The particular social group
analysis does not occur in isolation, but rather in the context
of the society out of which the claim for asylum arises.”
(quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 238)). The

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Board appears to have done just that in its treatment of this
issue.
Of course, in order for those perceived as gang members
to constitute a particular social group, Vasquez-Rodriguez
would have to demonstrate that their defining characteristic
is immutable, that they can be identified with particularity,
and that they are understood to be distinct within Salvadoran
society. Matter of M-E-V-G-, 26 I. & N. Dec. at 237. We do
not suggest that this group would necessarily qualify.
Instead, because the Board has not yet had an opportunity to
decide the issue, we must leave it for the Board in the first
instance. See SEC v. Chenery Corp., 318 U.S. 80, 87–88
(1943); INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002)
(per curiam).
IV
Remand will also allow the agency to reconsider whether
Vasquez-Rodriguez is eligible for protection under the CAT.
As it stands, the Board’s determination that he is ineligible
for such relief is not supported by substantial evidence.
Under the CAT, the applicant carries the burden to show
“that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). In assessing “the possibility of
future torture,” the immigration judge must consider, among
other things, “[e]vidence that the applicant could relocate to
a part of the country of removal where he or she is not likely
to be tortured.” Id. § 1208.16(c)(3)(ii); see Akosung v. Barr,
970 F.3d 1095, 1101 (9th Cir. 2020).
Here, the Board offered two reasons for concluding that
Vasquez-Rodriguez was ineligible for relief: that “his uncle,
whose political campaign he supported, had not been harmed

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VASQUEZ -R ODRIGUEZ V . GARLAND 19
in El Salvador,” and that he “could relocate to another part
of El Salvador.” The former rationale is contradicted by the
Board’s determination that Vasquez-Rodriguez “was
targeted by the police because he was a suspected gang
member” and “not because of his political (or imputed
political) opinion” based on his association with his uncle. It
is irrelevant that Vasquez-Rodriguez’s uncle can safely
reside in El Salvador: Vasquez-Rodriguez fears persecution
because the police perceive him—and not his uncle—to be a
gang member. See Kumar v. Gonzales, 444 F.3d 1043, 1055
(9th Cir. 2006).
That leaves the finding of an ability to relocate. The
Board expressly referred to the immigration judge’s
reasoning, so we review that reasoning as well. Flores-
Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012) (When
the Board “issues its own decision but relies in part on the
immigration judge’s reasoning, we review both decisions.”).
The immigration judge relied on Vasquez-Rodriguez’s
ability to “speak[] Spanish fluently” and “to find work
throughout El Salvador.” But his ability to reintegrate into
Salvadoran society says little about how he might safely
reside in a place in which he was for years abused by the
police. See Arrey v. Barr, 916 F.3d 1149, 1161 (9th Cir.
2019).
The immigration judge determined that the country-
conditions evidence “does not indicate that the entire country
is unsafe,” particularly in light of evidence that the
Salvadoran government “does not condone torture and
actively works to investigate and prosecute prosecutors,
even those among the police force.” But despite
acknowledging “that the police and organized crime groups
can be dangerous in certain parts of the country,” the
immigration judge identified no evidence suggesting that

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Vasquez-Rodriguez could safely relocate to another part of
the country. The government, for its part, cited a country-
conditions report purportedly stating that police violence is
confined to San Salvador. In fact, the report explains that
“[r]eports of abuse and police misconduct were more often
from residents of the metropolitan area San Salvador,”
which is hardly an endorsement of the safety of other areas.
See Davila v. Barr, 968 F.3d 1136, 1143 (9th Cir. 2020).
The relocation finding is also impossible to reconcile
with Vasquez-Rodriguez’s testimony, which the Board
assumed to be credible. When Vasquez-Rodriguez was
removed in 2013, the San Salvador police detained him at
the airport and then turned him over to the San Vicente
police. And as recently as 2018, the San Vicente police were
searching for Vasquez-Rodriguez and vowed to find him
once he is removed to El Salvador. The Board erred by
“failing to mention [that] highly probative or potentially
dispositive evidence.” Cole v. Holder, 659 F.3d 762, 772
(9th Cir. 2011).
PETITION GRANTED; REMANDED.
All pending motions are denied as moot.

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